N.Y. General Business Law § 799: Administration; suspension and revocation of registrations; fines; reprimands

§ 799. Administration; suspension and revocation of registrations;

fines; reprimands. 1. (a) The secretary shall refer each complaint which

alleges conduct constituting a violation of article one hundred

fifty-nine of the education law committed by an individual licensed

pursuant to article one hundred fifty-nine of the education law to the

office of professional discipline within the education department. Such

complaints shall be processed pursuant to article one hundred thirty of

the education law.

(b) Any order to suspend, revoke or refuse to issue a certificate of

registration for hearing aid dispensing of a licensed audiologist shall

be issued by the commissioner of education. Where such complaints allege

violation of the provisions of this article relating to the dispensing

of hearing aids by a registrant who is also subject to the provisions of

article one hundred fifty-nine of the education law, the secretary shall

have the powers as provided in this section. Such powers relate

exclusively to the registration as a hearing aid dispenser.

2. Except as provided in subdivision one of this section, the

secretary may suspend or revoke any registration issued pursuant to this

article, and/or impose a fine of up to one thousand dollars per

violation payable to the secretary. Such penalties may be imposed for

the following reasons:

(a) engaging in the business of dispensing hearing aids unless the

person is a registered hearing aid dispenser or a holder of a temporary

certificate of registration.

(b) incompetency which includes, but is not limited to, the improper

or unnecessary dispensing of a hearing aid.

(c) negligence and/or repeated negligent acts.

(d) conviction of any crime substantially related to the

qualifications, functions and duties of a hearing aid dispenser.

(e) obtaining a certificate of registration by fraud or deceit; or

presenting as his or her own the certificate of registration of another.

(f) use of the term "doctor" or "physician" or "clinic" or "hearing

specialist" or "audiologist," or any derivation thereof, unless

authorized by law; or any terms which suggest or imply medical board

certification, medical training, competency or expertise. Any reference

to certification or other professional training shall specify the

grantor of such credential.

(g) fraud or misrepresentation in the dispensing of a hearing aid or

aids.

(h) the employment, to perform any act covered by the provisions of

this article, of any person whose certificate of registration has been

suspended, revoked, or who does not possess a valid certificate of

registration or temporary certificate of registration issued under this

article.

(i) the use or causing the use, of any advertising or promotional

literature in such manner as to have the capacity or tendency to mislead

or deceive purchasers or prospective purchasers including any reference

to "hearing consultation", unless permitted pursuant to article one

hundred fifty-nine of the education law for those hearing aid dispensers

licensed under such article, or medical consultation, diagnosis or

treatment.

(j) the registrant's permitting another to use his or her certificate

of registration for any purpose.

(k) failure to display the certificate of registration as provided in

this article.

(l) violation of any provision of this article, other applicable

federal or state law, rule or regulation, or of any existing applicable

sanitary code.

(m) failure or refusal to perform repairs or service on any hearing

aid sold by such trainee and/or registrant.

(n) no hearing aid dispenser, registrant or hearing aid trainee shall

state or imply that the use of any hearing aid will restore hearing to

normal, or preserve hearing, or prevent or retard the progression of

deafness or being hard of hearing or any false or misleading or

medically or audiologically unsupportable claims regarding the efficacy

or benefits of hearing aids.

(o) fraud or bribery in securing a certificate of registration or

permission to take an examination therefor.

(p) violation of a lawful order of the department previously entered

in a disciplinary hearing or failure to comply with investigations or a

lawfully issued subpoena of the department.

(q) making any predictions or prognostications as to the future course

of deafness or being hard of hearing, either in general terms or with

reference to an individual person, except where such predictions and

prognostications are made by a hearing aid dispenser licensed pursuant

to the provisions of article one hundred fifty-nine of the education law

and consistent with such law.

(r) exerting influence on a client in such a manner as to exploit the

client for financial gain for the registrant or for a third party.

(s) sale of a hearing aid by telephone or telemarketing. Such

prohibition shall not limit the scheduling of appointments, offering of

services or the sale of a hearing aid to a person whom has been tested

by that dispenser or dispensing audiologist within the previous thirty

days or is a hearing aid user who has initiated or specifically

requested the telephone sale or offer of sale.

(t) inducing a prospective user or the parent or guardian of a

prospective user to execute a religious waiver through the use of a

false or misleading statement to effect the sale of a hearing aid.

(u) performing an otoscopic observation or testing of hearing for

medical diagnostic purposes.

3. Whenever a certificate of registration is revoked, such certificate

of registration shall not be reinstated or reissued until after the

expiration of a period of five years from the date of such revocation.

4. The secretary may issue an order directing the cessation of any

activity for which registration is required by this article upon a

finding that a person, including a partnership, limited liability

company, corporation, trust or other business organization has engaged

in or acted as a hearing aid dispenser or a hearing aid dispensing

business within this state without a valid registration. The department

shall, before making such determination and order, afford such person

including a partnership, limited liability company, corporation, trust,

association or business organization, an opportunity to be heard in

person or by counsel in reference to an adjudicatory proceeding held

pursuant to this article.

6. Upon the suspension or revocation of a certificate of registration

by the secretary and the issuance of a notice thereof, the registrant

shall within five business days deliver to the secretary the certificate

of registration. If surrendered by mail, the certificate of registration

shall be sent by registered or certified mail, postmarked no later than

three business days following notice of suspension or revocation.

Failure to return a certificate of registration which has been revoked

or suspended pursuant to this section within the prescribed time shall

constitute a violation punishable by the payment of a fine of up to five

hundred dollars.

7. In the event that the registrant shall contest the charge of the

violation, a hearing on the charge shall be conducted in accordance with

the provisions of subdivisions one and two of section eight hundred of

this article.